Wednesday, October 17, 2012

Illinois nonbio mom can pursue custody and visitation

The Illinois Appellate Court, Fifth District, has afforded a huge win to nonbio moms of children conceived through donor insemination. The decision in In re T.P.S. and K.M.S. was handed down last week. The opinion is remarkable because previous Illinois appeals courts have ruled against nonbio moms. And in a horrendous opinion a few weeks ago, a different Illinois appeals court ruled in In re Scarlett Z.-D.against the parentage claim of a man who raised an adopted child for four years with his female partner but never did a second parent adoption. The child had a last name consisting of the hyphenated name of her two parents, and called her father "daddy," but the court allowed the adoptive mother to completely erase the man from the child's life when their relationship ended. (To the lesbians-behaving-badly cases I now add a category of heterosexuals-behaving-badly...).

The T.P.S. court took no position on whether Scarlett Z.-D. was corrected decided. Instead, it ruled that the status of children born through donor insemination should be analyzed under different legal rules. The case the court relied upon is In re M.J., from the Illinois Supreme Court. I am very familiar with this case. The court allowed a mother to pursue child support from her former unmarried partner for a child she conceived through donor insemination, with his consent, while they were together as a couple. There are numerous cases involving children born to married heterosexual couples who use donor insemination, even when no statute clarifies parental rights and responsibilities. M.J. is the only one I am aware of where the heterosexual couple was not married but the court nonetheless determined that the mother could pursue a common law child support claim.

The T.P.S. court read M.J. as carving out law specific to children born of donor insemination. Such children have a right to support from their "parents" which allows a common law cause of action for support against a nonbiological parent. Similarly, they also have a right to the "physical, mental, and emotional support" of both parents, which means that Cathy, who was the children's primary caretaker, could file a common law action for custody and visitation rights. Illinois has a statute that makes a husband who consents the parent of a child conceived through donor insemination of his wife. The M.J. court concluded that this did not bar a common law support action between unmarried partners, and the T.P.S. court extended that reasoning to common law actions to establish an unmarried partner's parental rights. "Without an express legislative intent," the court wrote, "we will not assume that the legislature intended for the children born to unmarried couples through the use of reproductive technology to have less security and protection than that given to children born of married couples whose parentage falls within the purview of the Illinois Parentage Act."

The opinion's takeaway: "Parental rights may be asserted based on conduct evincing actual consent to the artificial insemination procedure by an unmarried couple along with active participation by the nonbiological partner as a coparent." In this case, not only was there coparenting but the couple had obtained a guardianship for Cathy over the two children.

The T.P.S. court found that a 1999 appeals court ruling against a nonbio mom was not good law because it was decided before M.J. There is one other truly terrible Illinois appeals case, and this came after M.J.. In In re Simmons, an Illinois appeals court ruled that the marriage between a woman and a female-to-male transgender man was a void same-sex marriage. The couple had a child through donor insemination who was six years old when the relationship dissolved. The court ruled that the father could not file for custody or visitation because he was not a biological or adoptive parent. The T.P.S. court determined, essentially, that Simmons applied M.J. incorrectly.

Nonbio mom Cathy can now prove common law contract and promissory estoppel theories to support her claim for custody and visitation. Although the language is a little ambiguous, I actually think the court has said that Cathy can prove she is a parent of the two children born to her partner through donor insemination. "If an unmarried person causes the birth of a child by the delibrate, premeditated conduct of artificial insemination under the express agreement with the mother to serve as a coequal parent," the court wrote, "that person should receive the same treatment in the eyes of the law as a person who biologically causes conception." Right on! The importance of determining that Cathy is the children's parent is that they thereby gain the right to inherit, obtain survivors benefits, etc that go with parentage. Also Cathy would be able to block any attempt by her ex-partner to allow someone else, like a new partner, to adopt the children.

As for any constitutional claim by Dee, the children's biological mom, the court says that her voluntary agreement to create a family through assisted reproduction and coparent with her partner takes care of any such concerns. Cathy actually made some arguments about her constitutional right to raise the children as their equitable parent; the court rejected this claim.

It's too soon to know if the bio mom will ask the Illinois Supreme Court to hear this case. If it does, I hope that M.J. will give the court the ability to head off any possible distinction between "legitimate" and "illegitimate" children of lesbian couples in Illinois. By that I mean the following. Illinois lesbian couples can now enter civil unions. Doing so gives them the rights and responsibilities of marriage. This means that children born through donor insemination to civil unioned couples have two parents by virtue of the statute that makes a consenting husband the father of a child born to his wife using donor insemination. If a child of the identical couple who have not entered a civil union has only one parent, then there will be two classes of children in Illinois based on the marital status of their parents -- something the demise of "illegitimacy" decades ago was supposed to end for children of heterosexual couples.

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About Me

I have been working on gay and lesbian family law issues for more than 35 years. I teach at American University Washington College of Law, but for the 2011-2012 academic year and the Fall Semester 2012 I was the McDonald/Wright Chair of Law at UCLA. I have published many law review articles and book chapters. BEYOND (STRAIGHT AND GAY) MARRIAGE is my first book.